Jonathan Turley — a constitutional scholar, professor at George Washington University Law School, and self-described "liberal" — denounced President Joe Biden's promise to seemingly only consider a black woman for his upcoming Supreme Court nomination.
What is the background?
After Supreme Court Justice Stephen Breyer announced that he would retire this year, Biden reiterated a campaign promise to place a black woman on the Supreme Court.
"The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity. And that person will be the first black woman ever nominated to the United States Supreme Court," Biden said on Thursday. "It's long overdue in my view. I made that commitment during the campaign for president, and I will keep that commitment."
Ensuring that a black woman fills Breyer's spot on the Supreme Court would, therefore, require Biden to nominate only black women.
What did Turley say?
Writing in an essay for Fox News, Turley explained the Supreme Court itself has already ruled that such evaluative methods are unconstitutional discrimination.
As previously discussed, the Supreme Court has repeatedly rejected such threshold exclusions on the basis of race or gender as raw discrimination. In 1977, the Court ruled in Regents of the University of California v. Bakke, that affirmative action in medical school admissions was unconstitutional. The justices declared that preferring "members of any one group for no reason other than race or ethnic origin is discrimination for its own sake" while adding that "this the Constitution forbids."
In response to comparisons to former Presidents Ronald Reagan and Donald Trump — who both pledged to fill Supreme Court vacancies with women — Turley explained the difference is that neither president, in contrast to Biden, ruled out non-women from consideration.
"What is most striking about the Reagan-Biden comparison is how unnecessary it was for Biden to categorically rule out non-female and non-black applicants. He could have simply made clear that he wanted to add a black female to the Court and would make that a priority without promising that the first vacancy would be barred to other genders or races," Turley wrote.
Turley made clear on Twitter that Biden's criterion is "unconstitutional."
"Jen Psaki just reaffirmed that the President will only consider a black woman for the next nomination — a threshold gender and race condition that the Court itself has found unconstitutional for schools and unlawful for private businesses," Turley said on Wednesday.
The editors of National Review observed in an editorial how Biden's pledge ironically disqualifies otherwise qualified progressive jurists — those whom liberals would love to see on the Supreme Court — while introducing unnecessary controversy to the Supreme Court nomination process.
"In a stroke, he disqualified dozens of liberal and progressive jurists for no reason other than their race and gender. This is not a great start in selecting someone sworn to provide equal justice under the law," the National Review editorial said.